Considered
and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Relator Paul E. Landreville challenges the decision
of the commissioner’s representative that he is disqualified from receiving
unemployment benefits because he was discharged for employment misconduct. We affirm.

FACTS

Relator worked as a full-time, electrical-maintenance technician for
respondent Northshore Mining Company (“Northshore”). He was responsible for inspecting, repairing and maintaining
electrical equipment at Northshore’s mine.

To
restart operations following a controlled blast in the mine, Northshore’s rules
require an examination of the blast area to determine whether the blast created
any safety hazards, including electrical problems. The examination following a May 22, 2002, blast revealed damage
to electrical power wires. The
corrective plan for the damage required: (1) locking out the power source
to the pit at the feeder, (2) locking out the switchgear in the pit, and (3)
jumping the power lines to get power to a shovel and drill in the pit.

Relator
used his personal lock on the feeder breaker to lock out the power source to
the pit at the feeder. Northshore’s
policy, however, requires using a company lock on the breaker. Relator then failed to properly disconnect
and lock out the switchgear in the pit before disconnecting a cable leading to
the shovel. After jumping the lines
changed the power source, another electrician noticed that the power did not
come on at the shovel, but the lights were burning on the drill. This meant that the cable that relator had
disconnected was energized with 4,160 volts of electricity, which could have seriously
injured or killed anyone who came in contact with the cable. Relator then went and locked out the
switchgear.

Later
that day, during a meeting with his supervisor, relator entered a statement in
the electrical-technician’s report indicating that the procedure he followed to
lock out the switchgear was wrong.
Relator’s entry stated,

(I dropped power @ crusher west
feeder put my safety lock on & opened up a box behind shovel with the
switch house still in. This was
wrong. I should have not relied only on
the feeder being locked out but should have opened up switch house too.) The feeder can be energized from other
sources by moving jumpers.

The
company’s investigation concluded that because there was power to the drill in
the pit, the switchgear had not been properly locked out. Northshore identified other incidents as
contributing to relator’s termination,[1]
but the May 22, 2002, incident was the primary reason for his discharge.

(1)any intentional conduct, on the job or off the job, that
disregards the standards of behavior that an employer has the right to expect
of the employee or disregards the employee’s duties and obligations to the
employer; or

(2)negligent or indifferent conduct, on the job or off the job,
that demonstrates a substantial lack of concern for the employment.

a sufficient showing in the record
that the employee not only engaged in intentional conduct, but also intended
to, or engaged in conduct that evinced an intent to, ignore or pay no attention
to his or her duties and obligations or the standards of behavior the employer
has a right to expect.

Id. at 150. “A
single incident can constitute misconduct when an employee deliberately chooses
a course of conduct that is adverse to the employer.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 806 (Minn.
2002).

Issues of
fact are determined by a preponderance of the evidence. Minn. Stat. § 268.03, subd. 2
(2002). The findings of the
commissioner’s representative are reviewed in the light most favorable to the
decision, and if there is evidence reasonably tending to sustain the findings,
they will not be disturbed. Schmidgall,
644 N.W.2d at 804. “When the parties
have presented conflicting evidence on the record, this court must defer to the
Commissioner’s ability to weigh the evidence; we may not weigh that evidence on
review.” Whitehead v. Moonlight
Nursing Care, Inc., 529 N.W.2d 350, 352 (Minn. App. 1995). When conflicting testimony requires a
credibility determination, we defer to the commissioner’s representative’s
credibility determination. Jenson v.
Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).

The commissioner’s representative
concluded that relator was discharged for employment misconduct because he
failed to follow the employer’s safety procedures on May 22, 2002. Relator argues that he did his job properly
when he locked out the power source to the pit at the feeder, and it was other
electricians who by-passed this lock-out that allowed the 4,160-volt cable to
be energized. But Kimball Alvey,
Northshore’s area manager of safety and loss control, who testified that
relator properly locked out the main power source at the feeder breaker, also
testified that relator “failed to lock out the line to the pit.” Alvey also
wrote in the report of his investigation of the incident that relator
disconnected the power to the pit, but he “did not lockout the switchgear,
which is the last source of protection from electrical power to anyone working
on the shovel.”

Alvey also wrote in his report that
relator attended a meeting of electricians to discuss the corrective-action
plan, and the plan included jumping the power lines to provide power to the
shovel and drill. This indicates that
relator knew that power was to be re-routed to the cable that he disconnected
without first locking out the switchgear and that the other electricians acted
according to the plan.

Relator argues that Alvey did not
attend the meeting of electricians to discuss the corrective-action plan on the
day of the blast, and, therefore, Alvey’s conclusion that relator attended the
meeting is based on hearsay statements of other electricians that the meeting
occurred and that relator was at the meeting.

Relator
is correct that the electricians’ statements that he attended the
corrective-action-plan meeting are hearsay.
The electricians who reported that relator attended the meeting did not
testify at the hearing before the unemployment law judge. But hearsay is admissible at a hearing
before an unemployment law judge. Minn.
Stat. § 268.105, subd. 1(b) (2002) sets forth the procedure for the
evidentiary hearing before an unemployment law judge. The statute provides that “[T]he commissioner shall adopt rules
on evidentiary hearings. The rules need
not conform to common law or statutory rules of evidence and other technical
rules of procedure.” Minn. Stat. §
268.105, subd. 1(b). Under the rules
adopted by the commissioner,
an unemployment law judge “may receive any evidence which possesses probative
value, including hearsay, if it is the type of evidence on which reasonable,
prudent persons are accustomed to rely in the conduct of their serious
affairs.” Minn. R. 3310.2922 (2001). Statements that employees make during an
employer’s investigation of an incident that affected the employees’ safety
and, if it occurred again, could place the employees in danger, is the type of
evidence on which reasonable, prudent persons are accustomed to rely in the
conduct of their serious affairs. The electricians’ statements are admissible
hearsay.

Furthermore,
relator admitted in his electrical-technician’s report that the procedure he
followed to lock out the switchgear was wrong, which indicates that relator
knew the correct procedure. Relator
contends that he wrote that statement under duress when his supervisor told him
what to write. But whether relator was
truthful when he wrote the statement or truthful when he testified that he
wrote the statement under duress is a credibility determination, and we must
defer to the commissioner’s representative’s credibility determination.

There is evidence
that reasonably tends to support the commissioner’s representative’s findings
that relator failed to follow known company procedures to lock out the power
source to the pit at the feeder and failed to disconnect and lock out the
switchgear in the pit. Because these
are procedures that Northshore had the right to expect relator to follow,
failing to follow the procedures is employment misconduct.

Affirmed.

[1]Additional
reasons set forth in the termination memo are: (1) electrical department
personnel believe relator works in an unsafe manner, is not a team player, does
not communicate well, is not receptive to training; (2) relator gave false
information to his supervisor during the investigation; (3) relator made
threatening statements during the investigation; and (4) supervisors counseled
relator on at least five separate occasions about his poor work
performance.